76 P. 819 | Cal. | 1904
In November, 1885, the register of the state land office issued to defendant a certificate of purchase for the tract of land described in the complaint, one hundred and twenty-nine acres, the same being claimed as swamp and overflowed land. In May, 1886, plaintiff filed his application to purchase the same land, accompanied by a verified protest against the issuance of any further evidence of title to defendant. Afterwards, in June, 1886, upon demand of plaintiff, the surveyor-general as exofficio register of the state land office, made an order directing that said contest be referred to the superior court of Lake County for trial.
In due time the amended complaint was filed. The court overruled the defendant's demurrer to the said complaint, whereupon he declined to answer, and his default was duly entered. The court thereafter heard the plaintiff's testimony, and ordered judgment that neither plaintiff nor defendant *72 was entitled to purchase the land in contest. From the judgment so entered defendant brings this appeal on the judgment-roll.
The sole question here is as to whether or not the court erred in overruling the defendant's demurrer to said amended complaint. The demurrer was upon the grounds, among others, that the amended complaint does not state facts sufficient to constitute a cause of action; that it does not appear therefrom what matters, if any, were stated in the alleged application of plaintiff to purchase; and that it does not appear that the lands have been sectionized. The demurrer should have been sustained. The surveyor-general must not approve any application, nor must the register issue evidence of title, for swamp and overflowed land until six months after the same has been segregated by authority of the United States. (Pol. Code, sec. 3441.) There is no allegation in the complaint that the lands sought to be purchased have ever been surveyed or segregated by authority of the United States. It is necessary for an applicant to allege and prove such segregation before he can purchase such lands.
In Garfield v. Wilson,
In Perri v. Beaumont,
There is no allegation in the complaint that the land was not suitable for cultivation, or that the plaintiff was an actual settler thereon. It is provided in the constitution that lands belonging to the state and suitable for cultivation shall only be sold to actual settlers. (Art. III, sec. 7.) This provision applies to swamp and overflowed lands. (Fulton v. Brannan,
It was therefore incumbent on plaintiff to allege and prove either that the land was not suitable for cultivation, or that, being suitable for cultivation, he was an actual settler thereon.(Manley v. Cunningham,
It is therefore clear that the plaintiff does not show by his complaint that the land is of such a character that it can be disposed of by the state, nor that his relation to it is such that he is entitled to purchase.
The complaint alleges facts which it is claimed show that defendant is not entitled to purchase the land. It is conceded that the plaintiff, showing no right in himself to purchase, nor in any way connecting himself with any claim to the land, may contest the right of defendant to purchase. (Garfield v. Wilson,
It is contended by respondent that the ordinary rules of pleading do not apply to a contest of this kind, and that the order referring the matter to the superior court for trial, the beginning of the action in due time, and the plea setting forth these facts give the court complete jurisdiction, and in such case that defendant is required to come into court and plead *74 and prove his right to purchase. We find no authority to support such contention. After the order of reference either party may bring his action. Unless the contestant commences his action within sixty days after the order of reference is made, his rights in the premises and under his application cease. (Pol. Code, sec. 3417.)
The commencement of an action means the filing of a complaint. The filing of a complaint means the setting forth of the facts upon which the contestant relies. If he desires to purchase the land, he must show that it is subject to sale, that he is a qualified purchaser, and that he has complied with the law in making and filing his application. The defendant when brought into court upon a showing of facts which, if true, would defeat his right to purchase, must affirmatively aver and prove facts which entitle him to purchase. But if the complaint does not show facts which make a prima facie case against defendant, he is not compelled to come into court and affirmatively set up his rights. The mere facts that defendant has a certificate of purchase, and that plaintiff protested against the issuance to him of any further evidence of title, and that the order of reference has been made, do not make a case that defendant is required to answer. It is said in Hinckley v. Fowler,
If we were to adopt the rule contended for here, there would be no need of the contestant beginning his suit and filing his complaint. The defendant would have to come into court without knowing the facts upon which the contestant based his claim or the defects claimed to exist as to his own proceedings. The orderly administration of the law, the dispatch of business in court, and the ends of justice require the pleadings, as in other cases, shall set forth the facts relied upon. No doubt that the court below on such terms as may be just will allow plaintiff to again amend.
The judgment should be reversed, with directions to the trial court to sustain defendant's demurrer.
Harrison, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is reversed, with directions to the trial court to sustain defendant's demurrer.
Shaw, J., Angellotti, J., Van Dyke, J.